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Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated May 5, 2014. The General Division determined that the Applicant was not eligible for disability benefits under the Canada Pension Plan, as it found that he did not have a severe and prolonged disability on or before January 31, 2011, the month before a retirement pension became payable.
[2] The Representative for the Applicant (the “Representative”) filed an Application Requesting Leave to Appeal to the Appeal Division on August 13, 2014. Leave is sought on the grounds that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; erred in law in making its decision, whether or not the error appears on the face of the record; and based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. To succeed on this application, the Applicant must establish that the appeal has a reasonable chance of success.
Factual background
[3] The Applicant began receiving a retirement pension in February 2011. The Applicant submitted an application for Canada Pension Plan disability benefits in August 2011. The Questionnaire for Canada Pension Plan Disability Benefits indicates that the Applicant remained employed on a part-time basis, for 6.5 hours per day, three days a week. A T4 issued for the year 2011 indicates that he had employment earnings of $10,800. The Applicant ceased working in October 2011.
[4] The Applicant indicated in his Questionnaire that he has severe arthritis, which was causing his hip to wear out. In addition, he suffers from chronic back pain, following a motorcycle accident that occurred in 1982. He advised that he has been in constant pain and fatigue, which limits his daily activities. He listed numerous functional limitations, particularly with standing, walking, lifting, carrying or bending. He has been seen by an orthopaedic surgeon, who diagnosed him with osteoarthritis of the left hip. He was scheduled to undergo a total hip replacement. The evidence before the General Division was that the Applicant had undergone a left hip replacement, but there were no updated medical reports following the surgery.
[5] The documentation before the General Division consisted of medical opinions dated August 22, 2011 and July 19, 2012, from his family physician, Dr. Leitner, a medical report dated November 29, 2011 from an orthopaedic surgeon, and diagnostic imaging.
Submissions
[6] The Representative submits that the General Division erred as follows, in:
- (a) Finding that the employer was not a “benevolent employer”;
- (b) Relying on submissions from or by the Respondent when there were no such submissions made and, therefore ultimately placed insufficient weight to the submissions made on behalf of the Applicant. Further, the General Division ignored or gave insufficient weight to the preponderance of medical evidence and viva voce evidence in support of the Applicant;
- (c) Failing to consider the letter dated July 19, 2012 of Dr. Leitner;
- (d) Failing to apply the “real world context” as established in Villani v. Canada (Attorney General), 2001 FCA 248, in that, when assessing the possibility of retraining, failed to consider vocational outcomes, demographics of the local area and the broader region, the Applicant’s age, education and general background, amongst other things;
- (e) Finding that the Applicant had not sought or in the alternative ought to have sought sedentary employment, when there was in fact evidence before it that the Applicant had sought and obtained sedentary employment;
- (f) Failing to properly apply a “fair, large and liberal construction” to the Canada Pension Plan, in accordance with the Interpretation Act, R.S.C. 1985, c. I-21, and the jurisprudence since Villani;
- (g) Finding that the Applicant’s disability was not severe and prolonged.
Analysis
[7] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No. 1252 (FC). In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, the Federal Court of Appeal found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success.
[8] Subsection 58(1) of the Department of Employment and Social Development Act sets out the grounds of appeal as being limited to the following:
- (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[9] The Applicant needs to satisfy me that the reasons for appeal fall within any of the grounds of appeal and that at least one of the reasons has a reasonable chance of success, before leave can be granted.
(a) Did the General Division Err in Finding that the Employer was Not a Benevolent Employer?
[10] According to the evidence before the General Division, the Applicant returned to work at a pub in February 2011. He worked there for three days a week, 6.5 hours a day. The employer, S. P., reported that between February and October, the Applicant needed breaks and that she always worked with him because she would pick up his slack and help him with lifting. She was of the opinion that he would have been unable to work the bar alone.
[11] This issue seems a moot consideration altogether, from the perspective of assessing the severity of his disability prior to January 2011, as the Applicant only began working with Ms. S. P. after January 2011. But, it is relevant from the perspective of determining whether the Applicant was capable regularly of pursuing any substantially gainful occupation after this date, as such a finding would undermine his disability claim. Neither the Applicant nor his Representative set out any bases or considerations for the submission that the General Division erred in finding that the employer was not a benevolent employer. What this amounts to essentially is a request for a reassessment and redetermination on this issue. That is well outside the scope of a leave application.
(b) Did the General Division Err in Relying on “Submissions” from the Respondent and Thereby Place Insufficient Weight to Submissions Made on Behalf of the Applicant?
[12] The Representative submits that the General Division erred in relying on submissions from or on behalf of the Respondent, when no submissions were made, and that it ultimately placed insufficient weight on submissions made on behalf of the Application.
[13] While the Respondent may not have been present or been represented at the hearing before the General Division, a review of the hearing file before the General Division indicates that a medical adjudicator had prepared written submissions on behalf of the Respondent, in the form of “Argument”, in or about July 2013. The written argument is set out on page GT2-10 of the hearing file. The General Division regarded these as submissions on behalf of the Respondent. Hence, I do not find that the Respondent did not have any submissions before the General Division.
[14] As for the issue of the appropriate assignment of weight, the Federal Court of Appeal has refused to interfere with the decision-maker’s assignment of weight to the evidence before it, holding that that was properly a matter for “the province of the trier of fact”: Simpson v. Canada (Attorney General), 2012 FCA 82. It clearly was within the purview of the General Division to determine the weight to assign to the evidence before it. I see no basis or authority upon which the Appeal Division ought to interfere with this assignment. The Applicant has not satisfied me that there is a reasonable chance of success on this ground.
(c) Did the General Division Err in Failing to Consider the Letter Dated July 19, 2012 of Dr. Leitner?
[15] Counsel submits that the General Division failed to consider the letter of Dr. Leitner. The General Division referred to the letter in the Evidence section of the decision. The letter is relatively brief and consists of four sentences, which reads as follows:
The above patient is under my care. He suffers from O/A – severe and advanced osteoarthritis of the hip. It is my medical opinion that his condition is prolonged and severe. He was not capable of any gainful employment as of January 2011.
[16] It is trite law to say that there was no obligation for the General Division to necessarily refer to all of the evidence before it. In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the Supreme Court of Canada remarked that:
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391).
[17] However, there were relatively few medical opinions before the General Division. Under those circumstances, typically one might expect that the trier of fact would necessarily refer to and analyze what little expert opinion was before it.
[18] While Dr. Leitner confirmed a diagnosis, he provided no analysis otherwise as to how he arrived at his opinion that the Applicant’s disability is severe and prolonged and that the Applicant is not capable of any gainful employment as of January 2011. The family physician’s report would not have been of much assistance in determining the Applicant’s severity, given the lack of meaningful analysis. That said, the General Division indeed considered and analyzed the letter, at paragraph 27 of the decision. I do not find any credence to the Representative’s submissions that the General Division failed to consider Dr. Leitner’s report. The Applicant has not satisfied me that there is a reasonable chance of success under this ground.
(d) Did the General Division Err in Failing to Apply the “Real World” Test
[19] The Representative for the Applicant submits that the General Division erred in failing to apply the “real world” context as established in Villani, in that, when assessing the possibility of retraining, failed to consider vocational outcomes, demographics of the local area and the broader region, the Applicant’s age, education and general background, amongst other things.
[20] Villani did not set out a comprehensive list of personal characteristics to be considered when assessing severity. In regards to the “real world” context set out in Villani¸ the particular characteristics which seem to have been contemplated by the Federal Court of Appeal relate to an applicant’s own particular characteristics, such as his or her age, education level, language proficiency and past work and life experience, as these factors are relevant in determining the scope of substantially gainful occupations. The “real world” context does not relate to a consideration of the vocational context, such as vocational opportunities or demographics of the area. The Federal Court of Appeal in Canada (Minister of Human Resources Development) v. Rice, 2002 FCA 47 confirmed that socio-economic factors such as labour market conditions are irrelevant considerations in assessing disability. At paragraph 8, Rothstein J.A. (as he then was) wrote:
However, as indicated, we would take this opportunity to make the point that indeed, as the Minister has argued, socio-economic factors such as labour market conditions are irrelevant in a determination of whether an individual is disabled pursuant to subsection 42(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8.
[21] The Representative does raise other personal circumstances, such as the Applicant’s age, education and general background, which he submits were overlooked by the General Division.
[22] For the purposes of a leave application, it is sufficient to show that the General Division did not apply the principles set out in Villani. Here, the General Division considered the Applicant’s personal characteristics at paragraph 22 of its decision, where it wrote:
[22] The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248). This means that when deciding whether a person's disability is severe, the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. The Tribunal acknowledges the Appellant's age of 60 in January 2011, his education level of grade 11 and his limited work experience outside bartending and carpentry. It must be also noted that the Appellant had no issues with respect to language proficiency and his previous employer hired the Appellant for his customer service skills. These are important factors to consider when the Tribunal determines the issue of whether the Appellant would have been able to retrain or become employed in a more sedentary job as the Respondent suggests. The Tribunal finds that even with the Appellant’s age, education and work experience he could have sought employment in a more sedentary service related position.
[23] The General Division undertook the Villani analysis required of it, and so did not err in failing to apply the “real world” context.
[24] I note also that the Federal Court of Appeal in Villani stated that:
. . . as long as the decision-maker applies the correct legal test for severity – that is, applies the ordinary meaning of every word in the statutory definition of severity in subparagraph 42(2)(a)(i) he or she will be in a position to judge on the facts whether, in practical terms, an applicant is incapable regularly of pursuing any substantial gainful occupation. The Assessment of the applicant’s circumstances is a question of judgment with which this Court will be reluctant to interfere. (My emphasis)
[25] Similarly, I would not interfere with the assessment undertaken by the General Division, where it has taken the Applicant’s personal circumstances into account, as it has done here.
(e) Did the General Division Err in Finding that the Applicant Had Not Sought Sedentary Employment?
[26] The Representative for the Applicant submits that the General Division based its decision on an erroneous finding of fact that it made without regard for the material before it. In particular, the Representative submits that the General Division found that the Applicant had not sought any sedentary employment, when there was in fact evidence of this nature before it. The Representative notes that the Applicant had indeed obtained sedentary employment and that it was from this setting that he determined that he could no longer work or achieve “substantially gainful employment”.
[27] The Representative has not identified the specific employment which he suggests was sedentary in nature. Presumably he refers to the employment with Ms. S. P., as this was the Applicant’s last employment before he ceased working in October 2011. Typically, bartending is not considered sedentary work. The General Division did not refer to any evidence before it to suggest that this employment was of a sedentary nature. It might have been assistance had the Applicant or his Representative set out some evidence to support a finding that the employment with Ms. S. P. was indeed of a sedentary nature. This might have involved identifying portions of the recorded hearing where such evidence might have been elicited.
[28] That being so, the Representative’s submissions suggest that the General Division found that the Applicant had not sought sedentary employment and that it overlooked the fact that his last employment was sedentary. In fact, the General Division was prepared to accept that the Applicant’s employment as a bartender was, to some extent, sedentary. However, the General Division found that while bartending was more sedentary than other occupations such as carpentry, it still required some lifting and standing. The General Division also found that there had been “no attempts in a more sedentary type of employment” (my emphasis). There is a marked distinction between not pursuing “any sedentary employment” and “more sedentary type of employment”. The Representative does not allege that the General Division erred in finding that the Applicant had not sought “more sedentary” employment. The Applicant has not satisfied me that there is a reasonable chance of success under this ground.
(f) Did the General Division Err in Failing to Apply a “fair, large and liberal construction”?
[29] The Representative for the Applicant submits that the General Division was required to apply a “fair, large and liberal construction” when assessing the Applicant’s disability. While that may be so, I find that this submission is overbroad by its very nature and that it calls into question the reasonableness of the decision of the General Division. Undertaking such an exercise is well beyond the scope of a leave application and on this basis, the Applicant has not satisfied me that there is a reasonable chance of success under this ground.
(g) Did the General Division Err in Finding that Applicant’s Disability Was Not Severe and Prolonged?
[30] The Representative for the Applicant submits that the General Division erred in finding that the Applicant’s disability was not severe and prolonged. I do not consider this to be a proper ground of appeal, as it does not appropriately identify an error of law. Rather, it goes to a matter of final determination, and properly, the Representative ought to couch the errors in terms of how the General Division might have committed specific errors of law or made erroneous findings of fact or failed to follow a principle of natural justice, that led to its final determination.
Conclusion
[31] Given the considerations above, the application for leave is refused.